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ing the proposed improvement thus ascertained, the recorder, on the 15th day of March, 1892, in pursuance of the terms of an ordinance passed in 1891, entitled "An ordinance to provide for notice to parties in relation to assessments for street improvements," duly published, as in the said ordinance provided, the following notice: "Notice of assessment: Notice is hereby given that the common council of the city of Salem,❘ Oregon, will at 8 o'clock p. m. of the 5th day of April, 1892, at the common council chambers at Salem, Oregon, proceed to assess upon each lot or part thereof liable therefor its proportionate share of the cost of grading, graveling, and curbing all that part of Chemeketa street described as follows, [here follows a particular description of that portion of the street to be improved,] according to the plans and specifications thereof, on file in the office of the city surveyor of Salem, Oregon. Done by the city of Salem, Oregon, this 15th day of March, A. D. 1892. M. E. Goodell, Recorder." At the time and place stated in the notice, the council convened for the purpose indicated, but, a quorum not being present, adjourned until the following day, when it proceeded to ascertain and determine, and did then and there determine, the proportionate share of the cost of making the proposed improvement, to be assessed upon each lot and part thereof liable therefor, by estimating the same according to frontage, none of the plaintiffs appearing or making any objections thereto. On the 3d day of May, 1892. the council passed Ordinance No. 242, for the improvement of the street, in which it declared that it was expedient to grade, gravel, and curb the street, and do all things required by the specifications, except that selected gravel was substituted for screened gravel; that the proposed improvement should be made wholly at the expense of the abutting property, and be assessed upon said property "in proportion to the number of front feet abutting on the street;" and that the probable cost thereof was $7,084. This ordinance also declares the proportionate share of the cost of making such improvement, assessed upon each lot or part thereof liable therefor, as previously ascertained and determined by the council, except that a reduction was made on account of the change in the specifications from screened to selected gravel, and directs the recorder to enter a statement thereof in the docket of city liens. It also recites that Archie Mason is the lowest and best bidder for the work, and awards the contract to him for $7,084. The improvement was completed in pursuance of this ordinance, and accepted by the city. The validity of this assessment is challenged by the plaintiffs, who are the owners of property abutting upon this street, and who, being residents of Salem, had actual knowledge of said improvement as the same was being made.
The decree of the court below was in favor of plaintiffs, and the city appeals.
D'Arcy & Bingham and J. J. Shaw, for appellant. R. P. Boise and Tilmon Ford, for respondents.
BEAN, J., (after stating the facts.) The only question necessary to consider on this appeal is one of jurisdiction and notice to interested parties; for if the city had power to make the improvement, and in doing so vio lated no express provision of its charter, and the abutting property owners had notice of, and an opportunity for, a hearing upon the question as to the proportionate share of the cost of the proposed improvement to be assessed against their property before the same became irrevocably fixed, a court of equity will not, after the work is completed, restrain the enforcement of the assessment on account of irregularities in the proceedings. The provisions of the charter of the defendant bearing on the question before us, in force at the time of this improvement, are as follows: "Sec. 46. The council is authorized to improve or repair any street or part thereof whenever it deems it expedient, and to declare by ordinance before doing the same whether the cost thereof, in whole or in part, shall be assessed upon the adjacent property or be paid out of the general fund of the city. Sec. 47. If the council declares that a proposed improvement or repairs shall be at the cost, in whole or in part, of the adjacent property, the proposed improvement or repairs shall be made accordingly; but if it declares that the cost thereof, in whole or in part, shall be paid out of the general fund, such repairs may be made as the ordinance may provide, and be paid for accordingly." "Sec. 24. Whenever the council of the city of Salem deems it expedient to improve a street or part thereof, it may proceed to as certain and determine the probable cost of making such improvement, and assess upon each lot or part thereof liable therefor its proportionate share of such costs." "Sec. 38. Each lot or part thereof within the limits of a street * shall be liable for the cost, in whole or in part, as the council may determine, of making a proposed improvement upon the balance of the half street in front." "Sec. 25. Whenever the probable costs of the improvements have been ascertained and determined, and the proportionate share thereof of each lot or part thereof has been assessed, as provided for in section 24, the council must declare the same by ordinance, and direct the city recorder to enter a statement thereof in the docket of the city liens as provided for in the next section." "Sec. 11. A sum of money assessed for the improvement of a street cannot be collected until, by order of the council, ten days' notice thereof is given by the recorder by the publication in a weekly or daily newspaper, published in the city of Salem. Such notice
must substantially contain the matters required to be entered in the docket of city liens concerning such assessment. Sec. 12. If, within five days from the final publica- | tion of the notice prescribed in section 11, the sum assessed upon any lot or part thereof is not wholly paid to the city treasurer, and a duplicate receipt therefor filed with the recorder, the council may thereafter or der a warrant for the collection of the same to be issued by the recorder, directed to the city marshal or other person authorized to collect taxes due the city." These provisions of the charter contain a general grant of power to improve a street at the expense of the abutting property, and the mode of its exercise is not restricted, except as to the manner of making the cost thereof a charge upon the abutting property. The wisdom and expediency of the improvement, the character and cost of the work, the manner of letting the contract or doing the work, are all matters of legislative control, and vested by the charter in the discretion of the council, and upon which the property owners have no constitutional or charter right to be heard. Paulsen v. City of Portland, 13 Sup. Ct. Rep. 750; Spencer v. Merchant, 100 N. Y. 585, 3 N. E. Rep. 682; Id., 125 U. S. 345, 8 Sup. Ct. Rep. 921. It is contended, however, that the charter is unconstitutional, because it makes no provision for notice at any stage of the proceedings to the property owners. We do not understand that it is essential to the validity of a city charter, granting power to improve a street, that it should contain a provision for notice to the property owners. It is enough if the power is granted in general terms; for, as was said by Mr. Justice Brewer in the recent case of Paulsen v. City of Portland, supra: "The city is a miniature state; the council is its legislature; the charter is its constitution; and it is enough if in that the power is granted in general terms, for, when granted, it must necessarily be exercised subject to all limitations imposed by constitutional provisions, and the power to prescribe the mode of its exercise is, except as restricted, subject to the legislative discretion of the council. Thus, in the case of Gilmore v. Hentig, 33 Kan. 156, 5 Pac. Rep. 781, it was held that where a statute authorizes a city to provide for the construction of sewers and drains, and to tax the costs thereof upon the adjacent property owners, but does not require that any notice shall be given to the property owners, held, that such failure to require notice does not render the statute unconstitutional or void, but notice must nevertheless be given, and the city would have a broad discretion with reference to the kind of notice and the manner of giving the same." See, also, Cleveland v. Tripp, 13 R. I. 50; Williams v. Detroit, 2 Mich. 560; Gatch v. Des Moines, 63 Iowa, 718, 18 N. W. Rep. 310. Under a general grant of power to do work of this kind, the city may, by ordi
nance, as was done in this case, provide for notice to the property owner, and the rule is that, if provision is made "for notice to and hearing of each proprietor at some stage of the proceedings upon the question of what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law." McMillen v. Anderson, 95 U. S. 37; Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. Rep. 663; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. Rep. 921. Now, in this case notice and an opportunity to be heard were given to the plaintiffs in pursuance of an ordinance of the city providing therefor, and prescribing its terms, before any assessment was made or attempted to be made. They did not see fit to avail themselves of the opportunity thus afforded, but now seek relief in a court of equity, because, as they allege, the assessment as made was unequal and unjust. This they cannot be allowed to do. Having had notice and an opportunity to be heard they should have appeared before the coun cil and made their objection at the proper time, and, not having done so, are now bound by the assessment.
It is next contended that the assessment in this case is void because made according to frontage. Section 38 provides that each lot or part thereof shall be liable in whole or in part for the cost, as the council may determine, of making a proposed improvement upon the half street in front thereof; and section 24 provides that the council may assess upon each lot or part thereof liable therefor its proportionate share of said costs. It thus seems that the rule for estimating the cost of making the improvement in front of a lot or part thereof, and the proportionate share to be assessed thereon, is not prescribed by the charter, but is left to the judgment and discretion of the council. In such case an assessment by the front foot is held valid and constitutional by numerous authorities; and while it may be admitted that such a measure of apportionment seems arbitrary, and likely to operate inequitably in some cases, and liable to other objections of more or less validity, yet, as Judge Cooley says, "the question is a fairly debatable one whether they are likely to be more serious or more frequent than those which are to be anticipated from the selection of some other rule." Cooley, Tax'n, 451. And this question must be deemed settled by the legislative judgment of the council where no mode is prescribed by the charter. King v. City of Portland, 2 Or. 146; Sheley v. City of Detroit, 45 Mich. 431, 8 N. W. Rep. 52; Norfolk City v. Ellis, 26 Grat. 224; Davis v. City of Lynchburg, 84 Va. 861, 6 S. E. Rep. 230; Farrar v. City of St. Louis, 80 Mo. 379. But, whatever may have been the equitable or just mode of assessment under the charter. the one actually adopted by the city, if unwise, was at most only an irregularity,
which might have been corrected if brought to the attention of the council by plaintiffs at the proper time; but, having neglected to do this, we think they are now estopped from objecting to the assessment as actually made. They had notice of the intended assessment, and an opportunity to be heard before it was made; and, not having availed themselves of the opportunity thus given, they are chargeable with knowledge of the method adopted by the city; and, having suffered the work to proceed to final completion and acceptance without protest or objection, and thus received the benefit of the improvement in the enhanced value of their property, they are now estopped from contesting the validity of the assessment on the ground of any irregularity in the proceedings. 2 Herm. Estop. § 1221; Elliott, Roads & S. 420; Kellogg v. Ely, 15 Ohio St. 64; People v. Utica, 65 Barb. 9; Darst v. Griffin, 31 Neb. 668, 48 N. W. Rep. 819; Lodor v. McGovern, 48 N. J. Eq. 275, 22 Ail. Rep. 199; Taber v. Ferguson, 109 Ind. 227, 9 N. E. Rep. 723; Prezinger v. Harness, 114 Ind. 491, 16 N. E. Rep. 495. In this case the council had jurisdiction under the charter to make the improvement at the expense of the abutting property, and the plaintiffs had notice and were given an opportunity to be heard before the assessment was made. This being so, it is now too late to take advantage of any irregularity which may have occurred in the proceedings. "The weight of authority," says Judge Elliott, "is very decidedly in favor of the rule that, where there is jurisdiction, the property owner who sees the improvement made, and offers no objection until after the work has been done, cannot defeat the assessment upon the ground that the proceedings have not been regular." Elliott, Roads & S. 419. If any irregularities or informalities occurred in the proceedings of the council in directing the work, or by including in Ordinance No. 242 matter that should have been in a separate ordinance, or in changing the specifications from screened to selected gravel after the assessment was made, or in any other particular not affecting the jurisdiction, it would be unjust and inequitable, after the work has been completed and accepted by the city, for a court of equity to restrain the collection of the assessment. The plaintiffs, who are residents of Salem, and had actual knowledge that the work was being done, have stood by and seen the street improved for the benefit of their property without objection, and now ought not to be allowed to shift the burden of making the improvement from themselves to the general taxpayers of the city. Assessments for street and other similar improvements are upheld upon the theory that the property within the assessment district is benefited in a special and peculiar manner in a sum equal to the amount assessed against it, and that the owner has thus received a peculiar and pecuniary benefit by
the improvement which the citizens generally do not share. Unless, therefore, the proceedings under which the improvement was made are so radically defective as to be totally void, the property owner who stood by and received the benefit with apparent willingness will be estopped to assert the invalidity of such proceedings. "He cannot enjoy the benefits, and escape the burden," says Mitchell, C. J., "unless he interferes or gives notice before the benefit is received." Ross v. Stackhouse, 114 Ind. 200, 16 N. E. Rep. 501. Whatever plaintiffs' rights may have been in the beginning, they have stood by and acquiesced until the rights of others have intervened, and they must now in equity be deemed to have made an effectual election to waive any and all irregularities in the proceedings under which such rights have been acquired. This, it seems to us, disposes of the question as to the validity of the assessment; for, as soon as it is ascertained that the council had jurisdiction to make the improvement, and the property owner an opportunity to be heard on the question of his assessment, the other objections are mere irregularities, which cannot now be urged in a suit to restrain the tax, but which might and should have been raised by some proper proceeding before the work was completed.
It is claimed, however, that the warrant under which plaintiff's' property was adver tised for sale was prematurely issued, because no order was ever made by the council authorizing or directing the publication of notice of the assessment, as required by section 11 of the charter. The notice required by this section was evidently designed to give the property owner an opportunity to pay the assessment before any costs should be made thereon, and is therefore a condition precedent to the right to order a warrant for the collection of the same to issue. It is not alleged that the notice was not in fact given; and it affirmatively appearing that an order was made by the council directing the warrant for the collection of the assessment to issue as required by section 12, which could only be done after the publication required by section 11, it would of itself probably operate as a ratification. But, however this may be, the answer denies the allegations of the complaint as to the want of an order by the council authorizing and directing the notice to be published, and affirmatively alleges that the notice was given in all respects as required by the charter; and, as the case is here on a demurrer to the answer, this allegation must be taken as true for the purpose of this opinion, and we must therefore assume that the order authorizing the publication of the notice was in fact made. It follows from what has been said that the decree of the court below must be reversed, and this cause remanded for fur ther proceedings not inconsistent with this opinion.
JOHNSTON ▼. WADSWORTH. (Supreme Court of Oregon. July 17, 1893.) SPECIFIC PERFORMANCE-CONTRACT TO PURCHASE LAND-VENUE-WAIVER OF OBJECTION -STATUTE OF FRAUDS.
1. Specific performance will lie at the instance of the vendor to enforce a contract for the purchase of land where he alleges and makes tender of a deed therefor, since the decree will compel the acceptance of the deed as well as the payment of money.
2. Under Hill's Ann. Code, § 388, providing that the court may change the place of trial, on the motion of either party, when it appears from the affidavit of such party that the suit has not been commenced in the proper county, the objection that a suit for specific performance of a land contract was not commenced in the county in which the land lay cannot be raised after the suit has been tried on its merits.
3. Where, as an inducement to plaintiff to purchase land through defendant, the latter gives him a contract by which he agrees to buy the land from him within a certain time if plaintiff so desire, such contract is not void for want of mutuality.
4. The presence of a seal is sufficient recital of consideration to satisfy the statute of frauds.
Appeal from circuit court, Multnomah county; L. B. Stearns, Judge.
Action by S. R. Johnston against Philip C. Wadsworth. From a decree for plaintiff, defendant appeals. Affirmed.
Cake & Simon, for appellant. W. McCamant, for respondent.
LORD, C. J. This is a suit in equity for the specific performance of a written contract. The complaint alleges that the plaintiff and defendant entered into an agreement whereby the defendant, in consideration of the sums to be paid as alleged, agreed to procure title for plaintiff to certain school lands belonging to the state, and at the same time, and as a part of said agreement, expressly stipulated that if the plaintiff should be dissatisfied with the land at any period within six months from or after the date of said agreement, and if plaintiff should so desire, the defendant would purchase said lands from him at the rate of three dollars per acre; that, in pursuance of such agreement, application was duly made for the purchase of the land described in the complaint, and plaintiff made the purchase relying upon defendant's agreement to purchase the land; that, upon examining such land, the plaintiff ascertained that the same was of little or no value, and thereupon notified the defendant of his desire that he should repurchase the same in accordance with his agreement, which the defendant failed and refused to do; that the plaintiff has made due tender to the defendant of a transfer of said land in compliance with his agreement, etc. A demurrer to the complaint was interposed by the defendant, on two grounds: First, that the complaint does not state facts sufficient to constitute a cause of suit; and, second, that the court did not have jurisdic
tion of the subject of the suit. The demurrer was overruled, and the defendant answered, denying the allegations of the complaint, and alleging that the procurement of the land for the plaintiff constituted the only contract that was made between them, and that it had been fully executed. The cause being referred, the findings were for the plaintiff, which, after argument, were affirmed by the court, and a decree was entered specifically enforcing the contract, from which decree the defendant has brought this appeal. The objection to the jurisdiction, presented by the demurrer, is based on two grounds: First, that the plaintiff has a plain and adequate remedy at law; and, second, that the suit was not brought within the county in which the land is situated. Upon the first point the contention is that the facts show that the only relief sought is a money judgment, and hence that the plaintiff is not entitled to the remedy of a specific performance unless there were acts alleged which the defendant is required to perform other than the single payment of money. "While it is true," as was said by Mr. Pomeroy, "that in these suits by the vendor there is generally some other act to be done by the purchaser besides the simple payment of money, the performance of which may be enforced by the decree," yet, he adds, "even in those cases, when no such act has been undertaken by him in the contract, he may be compelled to accept the deed or assignment or other subject-matter, as well as to pay the price, so that the decree is not purely one for the recovery of money." Pom. Spec. Perf. § 6. In the case at bar the plaintiff alleges, among other things, a tender to the defendant of a deed for the land, and that he brings the same into court, and thereby tenders to defendant a transfer of all his rights to such land. Upon this state of facts, the court would be authorized by its decree to compel the defendant to accept the deed, as in fact it has done, as well as to pay the price of the land, so that the decree would not be purely one for the recovery of money. The general rule that a court of equity will take cognizance of contracts sought to be enforced by the vendor, as well as those sought to be enforced by the vendee, is well settled, for Mr. Pomeroy says: "Since the vendee may, by a suit in equity, compel the execution and delivery of the deed, the vendor may also, by a similar suit, enforce the undertaking of the vendee, although the substantial part of his relief is the recovery of money." Pom. Spec. Perf. § 6. "As the vendor of land," says Mr. Waterman, "seeks only the payment of the purchase money, it might be contended that he had an adequate remedy at law, and therefore could not sustain a bill for the specific performance of the contract;" but, he adds, "a moment's reflection will, however, show that damages would not restore him to the situation he would be in if the
contract were performed." Wat. Spec. Perf. $ 15. Pecuniary damages for the breach of the contract is not what the plaintiff asks or is entitled to receive at the hands of a court of equity. He asks to receive the price stipulated to be paid in lieu of the land. While it is said that specific performance is not a matter of absolute right in a party, but of sound discretion in the court, yet the rule has come to be established, if a contract respecting real property is in writing, and is certain, fair in all its parts, for an adequate consideration, and capable of being performed, it is as much a matter of course for courts of equity to decree specific performance of it as it is for a court of law to give damages for the breach. Beach, Eq. Jur. § 636; Tied. Eq. Jur. § 493. The second objection to the jurisdiction is based on the fact that the lands which the defendant contracted to purchase are situated in Jackson county, and the suit to enforce the contract was brought in Multnomah county. It is claimed that under section 387, Hill's Ann. Code, the circuit court of Multnomah county had no jurisdiction to enforce the specific performance of a contract in relation to lands located in Jackson county. As a general rule, it is not necessary in equity that the subject-matter of a suit should be corporeally within the jurisdiction of the court, provided that the parties are in person within the jurisdiction, so that they can be personally summoned to answer the complaint; hence the rule established that, where the court has jurisdiction of the proper parties, it may compel them to do equity in relation to lands lo cated without its jurisdiction in another county or state. Tied. Eq. Jur. § 475. "A suit for the specific performance of a contract," said Gray, C. J., "proceeds in personam, and may be maintained in any court of equity which has jurisdiction of the parties, even if the land lies in another state or foreign country." Brown v. Desmond, 100 Mass. 269. See, also, Gardner v. Ogden, 22 N. Y. 327; Sutphen v. Fowler, 9 Paige, 281; Massie v. Watts, 6 Cranch, 148; 3 Pom. Eq. Jur. § 1313. The relief sought by this suit is not to determine title, but to recover the price stipulated to be paid for the land. The decree is in personam, and not in rem; and it would seem, therefore, when the parties are within its jurisdiction, a court of equity may make its decree in personam for the specific performance of a contract for the sale of land in another county, notwithstanding section 387. But, however that may be, if the plaintiff brought his suit in the wrong county, the defendant waived this objection under section 388 by not availing himself of the right to a change of venue to the proper county. We think, therefore, that it is too late to raise this objection after a suit has been tried on its merits.
The next objection is that the contract is not mutual. This objection is based on the
well-settled rule that equity will not specifically enforce a contract unless it is mutual in its obligations. But this rule is subject to certain well-established exceptions, to which it is claimed the contract sought to be enforced belongs. The facts show that de fendant made an agreement with the plaintiff, in consideration of the payment of a certain sum of money, a part of which was to be retained by the defendant, and a part thereof to be paid to the state of Oregon, whereby he promised to obtain title for the plaintiff to certain school lands belonging to the state of Oregon, and that, as a part of said contract, the defendant made and delivered to the plaintiff his agreement, as follows: "Portland, Oregon, February 19th, 1891. I hereby covenant and agree to purchase from S. R. Johnston six hundred and forty (640) acres of land, three hundred and twenty (320) applied for from the state of Oregon by John Harriman, and transferred to him, and three hundred and twenty (320) applied for in his own name, at the expiration of six months from date, if he so desires, at the rate of three dollars ($3) per acre. [Signed] Philip C. Wadsworth. [Seal.] Witnesses: E. J. Young. John Harriman," and at the same time agreed that if the plaintiff should, within six months after the date of the sale, be dissatisfied with the lands sold to him by the de fendant, he (the defendant) would purchase the same upon the terms set forth in the agreement. The lands referred to and de scribed were applied for and purchased under the agreement, and, in accordance with the terms of such purchase from the state, the plaintiff delivered certain promissory notes, etc., and made the purchase and entered into the agreement relying solely upon the representations of the defendant, and upon his written promise to repurchase the land as set out in the agreement. That plaintiff, after examining such land, was dissatisfied therewith, and notified the defendant of his desire that he should repurchase the same in accordance with the terms of his agreement, and that the defendant then promised in writing to so repurchase the land, and further promised to assume the promissory notes given to the state for a part of the purchase price. That the defendant did not comply with his agreement, and has wholly failed and neglected to repurchase the land at the price named, or for any other sum, and that, prior to the commencement of the suit, the plaintiff tendered to the defendant a conveyance of the property, and demanded that he repurchase the same, in compliance with his agreement, and that he has failed and refused to carry out the agreement; and, also, that the plaintiff has tendered to the defendant the transfer of said property, subject to the payment of said promissory notes by the defendant, and that such tender was refused. These facts are based on the testimony of the